Figueroa Iii v. Comm'r Of Correction., No. 28555.

• Decision Date: 21 September 2010
• Docket Number: No. 28555.
• Citation: 123 Conn.App. 862,3 A.3d 202
• Court: Connecticut Court of Appeals
• Parties: George FIGUEROA III v. COMMISSIONER OF CORRECTION.

123 Conn.App. 862

3 A.3d 202

George FIGUEROA III

v.COMMISSIONER OF CORRECTION.

No. 28555.

Appellate Court of Connecticut.

Argued Oct. 27, 2009.

Decided Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

George Figueroa III, pro se, the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, former senior assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and LAVINE and PETERS, Js. ^*

FLYNN, C.J.

Article third, § 1, of our state constitution provides for a particular style of the laws enacted by the Senate and the House of Representatives. Each such law's enactment clause must read: “Be it enacted by the Senate and House of Representatives in General Assembly convened.” Conn. Const., art. III, § 1. The appeal before us arises out of the trial court's granting of the respondent commissioner of correction's motion to dismiss the petition for a writ of habeas corpus in which the petitioner, George Figueroa III, claimed that this constitutional provision was not complied with following amendments to General Statutes §§ 53a-54a and 29-35, and that his conviction of murder of John Corbett and of carrying a pistol or revolver without a permit, respectively, should therefore be voided. It is undisputed that for the relevant year in which § 53a-54a, which prohibits the crime of murder and under which the petitioner was charged, was amended, the publication of the public acts did not contain the constitutionally required enactment clause as a preface to each public act so published. See Public Acts 1992, No. 92-260, § 26 (P.A. 92-260). Instead, the preface to the 1992 Public Acts states: “In preparing the engrossed bills for photo-composition the tradition of deleting the enactment clause has been followed to conserve paper....” The petitioner makes a similar claim of infirmity arising from the failure to print the enactment clause before each public act regarding § 29-35, prohibiting carrying a pistol or revolver without a permit, which was amended by Public Acts 1988, No. 88-128, § 1 (P.A. 88-128). The 1988 Public Acts contains the same prefatory language regarding deletion of the enactment clause for conservation purposes as does the 1992 Public Acts. The petitioner appeals following the habeas court's denial of his petition for certification to appeal to this court and requests reversal of the habeas court's decision on the merits or whatever other relief is deemed necessary and appropriate. We disagree with the petitioner's claims and dismiss the appeal.

The following facts are pertinent. In 1997, the petitioner, after a dispute with Corbett that had occurred two years earlier, armed himself with a gun and shot Corbett to death on Lilac Street in New Haven. State v. Figueroa, 74 Conn.App. 165, 166-68, 810 A.2d 319 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003). After his conviction, he was sentenced, for the crime of murder in violation of § 53a-54a and for carrying a pistol or revolver without a permit in violation of § 29-35, to a total effective sentence of sixty years imprisonment. The petition for a writ of habeas corpus was dated January 11 and filed with the clerk on August 14, 2006, and dismissed by the court on the respondent's motion under the authority of Practice Book § 23-29 for failure to state a claim on which relief could be granted. The habeas court concluded that the absence of the enactment clause in published versions of the public acts in question did not render the corresponding statutes invalid. The court subsequently denied certification to appeal pursuant to General Statutes § 52-470.

The petitioner represented himself at trial and on appeal. After a careful reading of his brief and listening to his oral argument, the petitioner's claims can be summarized fairly in the following way: (1) the statutory prohibitions against murder and carrying a pistol or revolver without a permit found in §§ 53a-54a and 29-35, respectively, were unconstitutional enactments because the amendments made in 1992 and 1988 lacked the enactment clause the constitution mandates; (2) because these enactments set forth in P.A. 92-260, § 26, repealing, reenacting and amending § 53a-54a and P.A. 88-128, § 1, repealing, reenacting and amending § 29-35, were unconstitutional nullities, the state's charging documents, which asserted the crimes as amended against him, were invalid and there was no jurisdiction of the court over him; and (3) the failure to include the enactment clauses deprived him of due process, notice of the nature and cause of the accusation contained in the information and equal protection, and, thus, his prosecution violated the fifth, sixth and fourteenth amendments to the United States constitution.

Before turning to the petitioner's claims, we note our standard of review. “Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., at 616, 646 A.2d 126. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., at 612, 646 A.2d 126.

“The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review.... Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Furthermore, the petitioner's appeal raises constitutional questions, our review of which is also plenary. See Perricone v. Perricone, 292 Conn. 187, 199, 972 A.2d 666 (2009).

We first address the petitioner's first two claims. He maintains that the amendments to §§ 53a-54a and 29-35 were void because the enactment clause required by the constitution was omitted from P.A. 92-260 and P.A. 88-128, which repealed, reenacted and amended the statutes. The enactment clause form required by our state constitution is mandatory. “Whatever ... [the constitution] prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.” (Internal quotation marks omitted.) Caldwell v. Meskill, 164 Conn. 299, 314-15, 320 A.2d 788 (1973), quoting Opinion of the Judges, 30 Conn. 591, 593-94 (1862). “In a majority of jurisdictions, the constitutional form of an enacting clause must be set forth in exact conformity ... in every act.” 1A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed.2009) § 19:2, p. 111.

The respondent contends, and we agree, that the petitioner has conflated the constitutional requirement of article third, § 1, with the statutory provision requiring publication of the public acts found in General Statutes § 2-58. ¹ Article third, § 1, requires that the “style” of the laws enacted by the General Assembly shall be: “Be it enacted by the Senate and House of Representatives in General Assembly convened.” The plain language of this constitutional provision refers to laws enacted by both houses of the legislature that become law either because the governor has signed them, or, not having vetoed them, has allowed them to become law without his or her signature, and those laws repassed by a two-thirds majority of each house following a gubernatorial veto. Under our authority to take judicial notice of legislative enactments; see Perkins v. Coffin, 84 Conn. 275, 304, 79 A. 1070 (1911); we have reviewed the contents of the originals of the public acts that are subject of the petitioner's appeal, which the secretary of the state is constitutionally required to keep for safekeeping and which have been entrusted by her to the Connecticut state library for that purpose. See State v. South Norwalk, 77 Conn. 257, 264-65, 58 A. 759 (1904); Eld v. Gorham, 20 Conn. 8, 16 (1849). These originals both contain the enactment clause required by our state constitution. We therefore agree with the respondent that there simply is no constitutional infirmity in either public act caused by a lack of that prefatory language in that the actual bills passed by the legislature both contained that clause.

We hold that the enactment of a law by the General Assembly transmitted to the secretary of the state with the governor's signature, or repassed by a two-thirds majority of each house after a gubernatorial veto, or which the governor allowed to become law without his or her signature, is compliant with the constitutionally mandated enactment clause if that law contains the required enactment clause. The plain language of the constitution refers only to laws passed by the General Assembly, not to published compilations of all the laws passed by the...